Government spying -- it's worse than you thought

On June 1, my newspaper, The Sandusky (Ohio) Register, published my long article on privacy, surveillance and government repression of the peace movement.  (Go figure, my editor assigned the office libertarian to do the piece.) As part of my research,  I interviewed Julian Sanchez of the Cato Institute, and I asked his opinion on how much spying on Americans the NSA actually does. Excerpt from the article:

One important question for privacy advocates is just how many email messages and telephone calls are intercepted by the National Security Agency, the NSA, Sanchez said. It’s difficult to find out if the NSA is sucking up vast amounts of information, although in theory the NSA is only supposed to intercept communications with people in other countries.
In practice, it’s not always easy to tell if a Gmail message is between two people in California, or between someone in Pakistan and someone in Yemen, Sanchez said.
“It’s plausible to me they are vacuuming up a lot of stuff,” he said.

Well, those paragraphs turned out pretty well, don't you think? If you can't tell what I'm talking about see this piece in Slate and this posting by Sanchez. See also this Wall Street Journal article. All of this began with Glenn Greenwald's scoop at the Guardian. If you want to keep up with this topic, I suggest paying attention to Sanchez on Twitter. Jesse Walker is also good.

My boss at work gave me permission to post my June 1 article here; perhaps sombunall of you will be interested.

By TOM JACKSON
jackson@sanduskyregister.com
SANDUSKY
It’s the Golden Age for communication.
A generation ago, long-distance messaging consisted of letter-writing and phone calls from a telephone anchored to the wall.
These days, thanks to cell phones and the Internet, anyone can communicate from almost anywhere to almost anyone, using technology that sounded like science fiction 20 years ago. On Twitter, or on Skype, it makes little difference if you’re in Milan in Italy or in Milan in Ohio.
But with all these blessings come many curses.
That is, it’s also the Golden Age for surveillance. If you fall under suspicion, there are new ways for the government to track you and learn all about you.
Your cell phone is a tracking device. Your email tells where you are when you compose a message. And in many cases, local, state or federal law enforcement officials can obtain the information without ever obtaining a warrant.
It’s definitely a double-edged sword.
The police have new tools for keeping law abiding people safe — that’s good — but privacy advocates worry government surveillance is becoming more common, particularly under a secretive Obama administration that apparently has no qualms about spying on reporters or citizens who advocate for unpopular political causes.
The Internet has become a “surveillance state,” technology security expert Bruce Schneier wrote in a March 16 article for CNN.com. Private companies routinely track Internet users and compile vast amounts of information, which can then often be accessed by the government, he wrote.
“Whether we admit it to ourselves or not, and whether we like it or not, we’re being tracked all the time. Google tracks us, both on its pages and on other pages it has access to. Facebook does the same; it even tracks non-Facebook users. Apple tracks us on our iPhones and iPads. One reporter used a tool called Collusion to track who was tracking him; 105 companies tracked his Internet use during one 36-hour period,” Schneier wrote.
There’s little the average person can do about it.
“There are simply too many ways to be tracked. The Internet, e-mail, cell phones, web browsers, social networking sites, search engines: these have become necessities, and it’s fanciful to expect people to simply refuse to use them just because they don’t like the spying, especially since the full extent of such spying is deliberately hidden from us and there are few alternatives being marketed by companies that don’t spy,” he wrote.
 Follow that phone  
The advantage of the new surveillance technology became clear in February, when police tracked down and arrested Robert Lee Jackson Jr., a suspect accused of using a gun for a bank robbery in Monroeville and a gas station robbery in Norwalk.
Norwalk police tracked Jackson’s cell phone signal as he headed back to Huron. Officers stationed themselves along major highways and nabbed him at U.S. 20 and Ohio 58.
This kind of cell tracking is used for serious cases, not for snooping or for minor criminals, Sandusky police Chief John Orzech said.
“There’s a whole lot of paperwork you have to fill out,” Orzech said. “You have to have a hearing in front of a judge.”
In the last 10 years, Sandusky police have used cell phone tracking five times, at most, he said.
“It’s for those people who are wanted on pretty severe charges, like murder, attempted murder, stuff like that,” he said.
Erie County Sheriff Paul Sigsworth said cell phone tracking may also be used to track people who are threatening to harm themselves, or to find someone suffering from dementia but who has a cell phone.
A far more common police technique is to obtain records for phone calls, showing the numbers called from a particular phone. This is routine, Orzech said, and it’s usually done several times a week. The records show incoming and outgoing calls — showing who was talking to who — and the time of the calls.
The records are usually obtained for felony investigations, although they’re also useful for misdemeanor harassment cases, Orzech said.
The traditional safeguard against excessive snooping is the court system. For some kinds of surveillance, investigators have to obtain a warrant, which means going before a judge and explaining there’s evidence of crime and evidence a specific person may be guilty.
But for collecting some kinds of evidence, only a subpoena is required. Officials can fill out a piece of paper at the courthouse, without getting permission from anyone.
Two attorneys at the Erie County public defender’s office, Jeff Whitacre and Chris Carroll, said that some phone companies demand a warrant before they’ll hand over cell phone records, but others only want a subpoena.
Death of anonymity 
The ability of authorities to easily obtain phone records — even for people who aren’t accused of a crime — became public knowledge when the Obama administration, apparently searching for the source of a national security leak, seized thousands of phone company call records for 20 separate Associated Press phone lines over a two-month period. The AP revealed on May 13 the government had secretly seized the records.
The reporters actually had more protections than ordinary people would have, Washington Post technology columnist Timothy Lee wrote in a May 14 article for the paper’s “Wonkblog” section.
“Before an FBI agent can seek a journalist’s call records, they must get special approval from the attorney general. But that’s merely a Justice Department policy, not a constitutional requirement,” Lee wrote. “The rest of the country doesn’t get even the modest procedural protection the government affords to journalists.”
Lee said the government can obtain records of “cloud” email services such as Gmail without a warrant.
“The FBI likely didn’t need a warrant to obtain e-mail records that led to the identification of Paula Broadwell as the mistress of Gen. David Petraeus last year,” Lee wrote.
The law still makes a sharp distinction between tracking records for emails or for phone calls and actually listening in on the calls and reading the emails. Google would require a warrant before it would hand over the actual contents of Gmail messages, said Julian Sanchez, a research fellow at the Cato Institute.
But the records of the messages, or the records of phone calls, can reveal a lot, Lee said, as the FBI demonstrated when it tracked down the identity of Petraeus’ secret mistress.
“Broadwell logged into her anonymous email account from multiple hotels. The feds subpoenaed the email provider to get the IP addresses from which she’d logged in, and then correlated those with hotel checkin records. She was the only one who’d checked into all the hotels,” Lee explained in an email to the Sandusky Register.
In his piece, Schneier pointed out that Broadwell had tried hard to cover her tracks: “She never logged in to her anonymous e-mail service from her home network. Instead, she used hotel and other public networks when she e-mailed him.”
Lots of potluck  
Recent revelations about the Obama administration’s spying on journalists and antiwar activists have raised questions about whether the federal government still behaves much as it did in the 1960s, when J. Edgar Hoover was the director of the FBI and the government routinely monitored activists.
Antiwar.com, a pro-peace news and advocacy site, discovered in 2011 that the FBI was investigating the site and its editors. When Freedom of Information Act requests from the site’s lawyers produced nothing, the site filed a lawsuit on May 21 this year, demanding information about the FBI surveillance.
Eric Garris, one of Antiwar.com’s founders, said the FBI’s investigation of the site is “very scary.”
“We’re a news organization and we definitely have a point of view, as probably most news organizations do, to some extent. Clearly, what we do should be, and is, protected by the First Amendment,” Garris said.
He said the site’s ability to survive has been damaged by the revelation that FBI agents are tracking it. The site exists on donations, and three important donors stopped giving money because they’re afraid of becoming the subjects of an FBI investigation.
The FBI carried out raids on Sept. 24, 2010, in several Midwestern states in the homes of peace activists in the Freedom Road Socialist organization, said Tom Burke, a member of the group and a self-described peace activist.
Burke’s home wasn’t raided, but as he drove to find an Internet cafe so he could write a press release about the event, he noticed that a black SUV was following him after he made two left turns. He made a third turn, and the SUV again turned behind him.
The SUV turned out to be an FBI vehicle. Agents served him with a grand jury subpoena, demanding testimony about the group’s alleged support of terrorist groups abroad. Burke and other members of the group refused to testify, and the investigation into the group continues.
Burke said his group holds potluck dinners to raise money and then donates to groups such as a Palestinian women’s health group or a union in Colombia. He insists his group gives no money to terror groups.
“We hold protests to try to change U.S. policies toward the countries of Colombia and Palestine,” he said.
Terrorism is a convenient label to repress speech, contends Burke, who notes that Nelson Mandela was labeled a terrorist by the U.S. government until 2007.
Federal impunity 
Erie County’s homegrown peaceniks haven’t felt threatened by the government, said Larry Smith, of Huron, a retired English professor and a member of Voices for Peace and Justice, which formed in 1985.
“We might have been watched. We never felt invaded,” Smith said. “We were a peace group. We were not advocating any type of violence.”
One important question for privacy advocates is just how many email messages and telephone calls are intercepted by the National Security Agency, the NSA, Sanchez said. It’s difficult to find out if the NSA is sucking up vast amounts of information, although in theory the NSA is only supposed to intercept communications with people in other countries.
In practice, it’s not always easy to tell if a Gmail message is between two people in California, or between someone in Pakistan and someone in Yemen, Sanchez said.
“It’s plausible to me they are vacuuming up a lot of stuff,” he said.
Because of the secrecy and actions of the Obama administration, it’s difficult for reporters and advocacy organizations to serve as watchdogs to determine if federal officials are following the law.
The Sandusky Register has found it’s much easier to get local officials on the phone to obtain local records under Ohio’s public records law, as compared to obtaining federal records or getting federal officials to speak on the record.
The U.S. Border Patrol, for example, has refused to answer questions for years about its activities in Erie County and surrounding counties.
This past week, the FBI raided the Outlaws bike clubhouse on Dewitt Avenue in Perkins Township. The FBI’s Cleveland office refused to provide information on the raid, and the search warrant was filed under seal.
This mirrors the actions of the U.S. Department of Agriculture late last year, when armed agents from the Farm Service Agency raided Hermes Winery. The Farm Service Agency refused to provide information on the raid, and the agency has since shot down the Register’s requests for documentation on the raid.
Sanchez said he is still waiting for a response to a Freedom of Information Act request he filed in July 2012 to obtain a semiannual report, required by law, on wiretaps the NSA carries out under the Foreign Intelligence Surveillance Act, or FISA.
Government officials told Sanchez they could not confirm the existence of such a report. When Sanchez pointed out the reports were required by law, the officials conceded they understood the request.
“We’re pushing a year here,” Sanchez said. “I obviously haven’t gotten anything.”